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stables to whom the same shall be due: But the justices shall not levy any tobacco for such cunstables as shall neglect to do their duty as required by this act. VII. And be it further enacted, by the authority

Repealing aforesaid, That all and every other act and acts, clause clause. and clauses, heretofore made for or concerning any matter or thing within the purview of this act, except so much of one act of assembly, made in the fourth year of Queen Anne, intituled, An act for improving the staple of tobacco, and for regulating the size and tare of tobacco hogsheads, as relates to the tending of seconds, shall be, and are hereby repealed.

VIII. And be it further enacted, That this act shall commence. commence and be in force from and immediately after ment of this the tenth day of June, which shall be in the year of act. our Lord, one thousand seven hundred and fifty-one.

CHAP. XXV.

An Act prescribing the method of

proving book debts.

1. WHEREAS the trade of merchandize in this Preamble. colony is chiefly carried on by retail, and the goods and merchandizes are often delivered to the buyer by the retailer himself, and it frequently happens that no body is privy thereto but the buyer and seller, so that in many cases there may be a defect of legal evidence to charge such buyer, and by that means a fair trader may be hindered from recovering a just debt; for preventing disputes and different opinions in the several courts of justice within this dominion, and for determining what shall be lawful evidence in such cases:

II. BE it enacted, by the Lieutenant-Governor, Council and Burgesses of this present General Assembly, and In what cases it is hereby enacted, by the authority of the same, That may be given in any action of debt, or upon the case, which hath been in evidence. or shall be brought, where the plaintiff shall declare or has declared upon an Emisset, or Indebitatus Assumpsit, for goods, wares, or merchandizes by him sold, and delivered to any other person or persons,

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and upon the trial of such action, such plaintiff shall declare upon his corporal oath, or solemn affirmation, as the case may be, That the matter in dispute is a store account, and that he hath no means to prove the delivery of the articles therein contained, or any of them, but by his store book; in that case such book shall and may be given in evidence at the trial, if he shall make out by his own oath or affirmation, That such book doth contain a true account of all the dealings, or the last settlement of accounts between them, and that all the articles therein contained were bona fide delivered, and that he hath given all just credits due to the defendant, in such account; and such book and oath or affirmation, shall be admitted and received as good evidence, for any of the articles, for goods

delivered within two years before the same action Limitation brought, but not for any article of a longer standing, of time.

unless the defendant shall have removed out of the county where he resided at the time of his contract

ing the debt, and then within three years before action Executors, brought: And where the person who delivered such or adminis- goods, wares, or merchandizes shall die, his execuprove debts tors or administrators may give his store book in eviin the like dence, upon his or their making oath, that there are

no witnesses to his or their knowledge, capable of proving the delivery of the goods, or merchandizes therein mentioned, and that he or they found the book so stated, and do not know of any credit to be given; and such book and oath shall be admitted and received as evidence, for any of the articles for goods delivered within the time aforesaid.

III. But whereas it has been found inconvenient and hazardous by reason of bad weather and other accidents, to carry books of accounts at great distances to thie general or county courts, when a copy of the account, proved in the same manner as by this law the book is to be proved, may satisfy the defendant as fully and effectually as if the book of accounts

were produced in court at the trial of the cause, Be it In what ca.

further enacted, by the authority aforesaid, lhat a copy ses a copy from the book of accounts, proved in the manner heremay be given in before directed, shall and may be given in evidence in evidence. in any such action as aforesaid, and shall be as avail

able as if such book had been produced; but where the book shall be by the defendant required to be produced at the trial, the defendant or his attorney, shall give

manner.

notice thereof to the plaintiff or his attorney, at the joining of the issue, and in that case no such copy shall be admitted or received as evidence.

IV. Provided nevertheless, That the defendant shall But the debe at liberty to contest the plaintiff's evidence, and to fendant may

contest such oppose the same by other legal evidence; and where

proof. the defendant shall be an executor or administrator, his testator's or intestate's book, shall and may be given in evidence, against the plaintiff's book, where the plaintiff is an executor or administrator.

V. Provided also, That no book of accounts, al. No book of though the same may be proved by witness or wit- accounts nesses, shall be admitted or received as evidence, in mitted after any action for goods, wares, or merchandizes deliver- five years, ed, or for work done, above five years before the same except for action brought, except in case of merchants residing

foreign mer

chants. in Great Britain, or in other parts beyond the seas.

V. And be it further enacted by the authority afore- Repealing said, That one act made in the fifth and sixth years clause. of his present majesty's reign, intituled, An act prescribing the method for proving book debts, shall be, and is hereby repealed. VII. And be it further enacted, That this act shall

Commencecommence and be in force, from and immediately after ment. the tenth day of June, which shall be in the year of our Lord, one thousand seven hundred and fifty-one.

CHAP. XXV.

An Act concerning Water Mills.

acre of landa

1. BE it enacted, by the Lieutenant Governor, Coun- The method sil, and Burgesses, of this present General Assembly, of procee :and it is hereby enacted by the authority of the same, ing upon pe. That where any person, intending to build a water tition for an mill, on some convenient run, shall have land only on one side thercof, such person shall petition the court of that county wherein the land on the other side such run shall lie, for one acre to be laid off for such use, which court is hereby authorised and required, upon such petition, at the costs and charges of the petitioner,

ito issue their order to the sheriff, commanding him to summon a jury of twelve freeholders of the vicinage, to meet upon the land petitioned for, who being met and duly sworn before a magistrate, or the sheriff, shall diligently view and examine the said land, and the lands adjaceut thereto, on both sides the run, in the same or the next county, which may be affected or laid under water by building such mill, together with the timber and other conveniencies thereon, and shall report the same, with the true value of the acre petitioned for, and of the damages to the party holding the saine, or to any other person or persons, under their hands and seals; which report shall be returned by the sheriff, to the court whence such order issued, and if thereupon it appears reasonable to such court, and if it take not away houses, orchards, or other immediate conveniencies, then they may, and are hereby authorised and impowered, to grant such acre to the petitioner, and order the return to be recorded, which shall be a good and effectual seisin in law, and upon paying down the valuation moncy of the land and damages, reported by the jury, to the person and persons legally intitled thereto, shall create a fec-simple in the said acre of land, to such petitioner or pe

titioners, his, her, or their heirs and assigns. Condition of. II. Provided nevertheless, That the person so put holding such in possession shall, within one year afterwards, begin

to build, and within three years finish a water mill, and continue to keep the same in good repair, for public use; otherwise such acre shall revert to the former proprietor, from whom the same was so taken,

his or her heirs. Parties inju- III. Provided also, That where any water mill shall red, may sue be built, pursuant to the directions of this act, and any for damages.

person or persons shall conceive him, her, or themselves to be injured by the building of such mill, it shall and may be lawful for the party injured, to bring his or her action on the case, against the owner or owners of such mill, any thing herein contained to the contrary, or seeming to the contrary, in any wise,

notwithstanding. Saving to IV. Provided also, That where any water mill shall persons un belong to any person being within the age of one and der legal dis. abilities.

twenty years, feme covert non compos mentis, or im. prisoned, and shall be discontinued, burnt, or destroyed

acre.

by tempest, every such person, his or her heirs, shall
have liberty to rebuild or repair within three years
after such disabilities removed.
V. And whereas some persons may have built wa-

Provision in ter mills on a point of land of their own, in the fork special cases of a swamp, between two runs, and extended their where endams each way cross both runs, to lands in which they

tailed land

has been had only an estate tail, and have sold the same, with

sold. an acre at each end of the said darns, and though each of the acres aforesaid are really opposite to the land of such builders, yet it has been doubted, whether the court upon application, could confirm the purchaser, in a fee simple in each of the said acres: And forasmuch as such cases are within the equitable intent, and construction of this act, Be it therefore further enacted, by the authority aforesaid, That the court of the county where the said acres lie, shall, and they are hereby required, on the petition of the purchaser, to enquire into the facts, and if it appear to them, that the purchaser hath paid a valuable consideration for the said acres, they shall record the title of the purchaser, confirmed in fee simple thereto; or if in their opinion, a sufficient consideration is not already paid, they shall at the costs and charges of the petitioner, issue their order to the sheriff, to summon a jury as is herein before directed, who being duly qualified, shall view, value, and report under their hands and seals, how much more the petitioner ought to pay, and the court shall record such report, and that the petitioner's title to the said acre, at each end of the dam, is confirmed to him in fee simple, on his paying down to the party or parties entitled thereto, the sum so reported, if any be found due, which proceeding shall be a good and effectual seisin in law, to the petitioner, and shall create a fee simple in the said two acres, to such purchaser, his, her, and their heirs forever, subject nevertheless to the provisos, conditions, and limitations of this act: And if the bounds of the said two acres are not ascertained in the deed of purchase, the jury appointed to value as aforesaid, or any two members of the court, or other persons whom the court shall appoint, shall fix and ascertain the same, by. marks on the land, and express the same in writing, under their hands and seals, which shall be recorded in court, and be sufficient to fix and ascertain the bounds thereof.

H-Vol. 6.

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